"I think I was trying to suggest something about the duality of man, sir ... the Jungian thing, sir."
Private Joker, Full Metal Jacket

Tuesday, March 27, 2012

Redistricting Struggles

So what to make of the manuevering following the panel decision in Wisconsin's redistricting case. Lots of spin. Some irresponsibility.

There appear to be three major talking points from the Democrats. One is that the legislature should now take up the entire map. Another, slightly differing take, is that the Democrats should limit themselves to fixing the Voting Rights Act violation found by the three judge panel but disregard the court's admonition that this be done within the outer boundaries of Assembly District 8 (the district found to be inconsistent with the VRA) and Assembly District 9. This would probably require changing the boundary of Senate districts because one cannot split an Assembly district between Senate districts.

Of course, neither of those things can or should happen. The three judge panel made clear that, while it would (quite properly) give the legislature the first crack at addressing the violation, it did not believe that the legislature should do anything other than change the boundary between Assembly Districts 8 and 9 without altering the outer boundaries of those districts.
In this, the panel is on solid legal ground. Recent Supreme Court precedent makes clear that courts are to alter only so much of a legislatively drawn plan as to remedy whatever violation has been found. The panel has made clear what it regards the scope of the remedy ought to be and, while that is not binding on the legislature, it effectivey delimits what the Republicans ought to agree to.

The Court has made clear that it will lift its injunction against Act 43 if the boundary between 8 and 9 is adjusted to create the type of majority Latino district it believes is required. It has also made clear that, if it has to draw the line, that's all it will do.
And properly so. If you think there is a VRA violation (and I think the panel may well turn out to be wrong on that), it remedies the violation and defers to the legislature on the rest. It leaves all of the Senate districts - none of which were found to violate the law - in place.

While some have suggested that it is not possible to create a Latino majority district (as the panel sees it) within the confines of Assembly Districts 8 and 9 as originally drawn, that is not true. The alternative proposed by the plaintiff's expert is within those boundaries although it would create an odd looking "donut hole" shaped Assembly District 9. In any event, I understand that there are several ways to avoid that without creating an odd shaped district.

There is no chance that anything other than an adjustment to the boundary of Assembly Districts 8 and 9 will pass the Assembly or be signed by the Governor. There is little chance that it could even pass the Senate. Again, there is no reason why it should. The rest of the plan has been found to violate no law or, for that matter, to suffer from any other infirmity that would not be matched by other plans.

So unless the Democrats are willing to limit themselves to the only remedy that the panel said is legally required, there is no reason to revisit the issue in the legislature. In fact, doing so may well violate the state constitution. While I believe that prior case law interpreting the state constitution to permit only one redistricting every ten years cannot restrict the legislature's attempt to correct a legal violation or settle a legal challenge, going beyond what the panel has now said is required would be neither of those.

Some bloggers have claimed that refusal to bring the legislature back to address this is "defiance" of the panel. This is nonsense.

First, the legislature is under no order from the court because the legislature was not a party to the litigation. Second, if it is "defiance" to refuse to bring the legislature back when the Democrats have demonstrated that to do would be futile, why is it not also "defiance" for Democratic legislatures to announce that they do not intend to limit themselves to doing the only thing that the panel has indicated must be done to go forward.

I would not accuse either of "defiance." I don't get the vapors when politicians act like politicians. I do think the Democrats are trying to get something that they can't get but there is a bit of a twist.

2 comments:

Geo Mitchell
said...

Rick's grasp of the applicable legal issues will probably be insufficient to deter some commenters from barking out all of Mike Tate's talking points. Maybe they can begin by recycling the judges' extra-legal finger-pointing about "process."

How that process is carried out DOES matter, George Mitchell. It's about time you and the other insiders, (D) and (R), begin to comprehend.

Have Democrats in Wisconsin ever made nondisclosure agreements during the redistricting process?If yes, when? What was the rationale?

If no, then this "tool" would appear to be a radical departure from normal operating procedures.

Have Democrats in Wisconsin ever used attorney-client privilege as a tool to blur the lines between political advice and legal advice during the redistricting process?If yes, when? What was their rationale?

If no, then this "tool" would appear to be a radical departure from normal operating procedures.

I get why the redistricting plan was ultimately upheld. But one can be critical of HOW it was brought about.

About Me

I am President and General Counsel of the Wisconsin Institute for Law & Liberty and an adjunct professor of law at Marquette University Law School. The views expressed here are my own and not those of WILL or Marquette. They are offered in my personal capacity.